Director of Public Prosecutions v Ater
[2015] VCC 1048
•6 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00418
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AWER ATER |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 July 2015; 31 July 2015 | |
DATE OF SENTENCE: | 6 August 2015 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ater | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1048 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – intentionally causing injury – affray – two charges of make threat to kill
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited:R v Mills [1998] VR 235; Azzopardi v R (2011) 35 VR 43; Boulton v R [2014] VSCA 342; R v LD [2009] VSCA 311
Sentence: Convicted and sentenced to a total effective sentence of 12 months’ imprisonment. Further sentenced to a Community-Correction Order for a period of 18 months after release from prison with certain conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr W Stougiannos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J Clark | Chris McLennan & Co |
HIS HONOUR:
1 Awer Ater, you pleaded not guilty to the following offences:
Charge 1 – that you, at Sunshine West in Victoria on 2 November 2014, without lawful excuse, intentionally caused injury to Gabriel Bol.
Charge 2 – that you, at Sunshine West in Victoria on 2 November 2014, without lawful excuse, recklessly caused injury to Gabriel Bol (an alternative to Charge 1).
Charge 3 – that you, at Sunshine West in Victoria on 2 November 2014, unlawfully fought and made an affray.
Charge 4 – that you, at Sunshine West in Victoria on 2 November 2014, without lawful excuse, made to Jima Wech, a threat to kill Jima Wech, intending that Jima Wech would fear that the said threat would be carried out, or being reckless as to whether or not Jima Wech would fear that the said threat would be carried out.
Charge 5 – that you, at Sunshine West in Victoria on 2 November 2014, without lawful excuse, made to Arok Chol, a threat to kill Arok Chol, intending that Arok Chol would fear that the said threat would be carried out, or being reckless as to whether or not Arok Chol would fear that the said threat would be carried out.
2 You stood your trial and on 3 June 2015, a jury found you guilty in respect of Charges 1, 3, 4 and 5.
3 The offence of intentionally causing injury is contrary to s.18 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment. The offence of affray carries a maximum penalty of five years’ imprisonment. The offence of threat to kill is contrary to s.20 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
4 You admitted your criminal history which reveals the following:
(a)
On 8 February 2010, at the Sunshine Children’s Court, you were found to have committed an unlawful assault, a theft of a motor vehicle and without conviction, you were released on a good behaviour bond for
12 months in the amount of $200;
(b) On 18 December 2012, at the Melbourne Magistrates’ Court, it was found that you recklessly caused injury and without conviction, the proceeding was adjourned until 18 August 2013.
5 I was informed that you have been charged with recklessly causing injury, unlawful fighting and making an affray, unlawful assault in company, unlawful assault with an instrument, and unlawful assault by kicking, arising out of an incident on ANZAC Day, 2014. These charges are outstanding and are yet to be determined in the Magistrates’ Court. Counsel for the prosecution also informed me that when on bail for the offending on ANZAC Day, you were involved in an affray, which on the 5 January 2015, was found proven and you were fined $1,500.
Circumstances of the offending
6 Each of the complainants gave evidence in the trial and I consider that the jury verdict can be construed as fundamentally accepting the evidence of each of the complainants in relation to the circumstances of the subject offending.
7 On Saturday, 1 November 2014, a cousin of Arok Chol was getting married in a Sudanese wedding held at the Croatian Hall located on Fitzgerald Road, Sunshine West. The complainants, Gabriel Bol, Jima Wech and Arok Chol (the wife of Jima Wech), together with Emmanuel Mabior and Robert Deng, drove to the wedding in Wech’s vehicle.
8 After Wech had parked his car in the carpark at the Croatian Hall, the rear window of the vehicle was smashed with a baseball bat by someone who was subsequently identified as Goum. After the window was smashed, the complainant, Bol, got out of the car and saw Goum and you. Bol stated, “Goum, why you smashing?”
9 You and Goum, together with others, retreated and then started to run into the front door of the hall, during which time Bol continued to query why the back window was smashed.
10 During this time, Bol was queried why he was with Wech and the others. Shortly after that, Bol was struck on the left arm by someone brandishing a metal pole, shortly after which you were observed holding a knife. Bol stated that he heard you say, “Okay, seeing as you are part of them, I’m going to slice your throat”, after which you swung the knife, causing Bol to block it with his right hand. At that time, Bol described himself as being "very scared" and "feeling blood", because he thought he was going to be killed by you.
11 The unchallenged medical evidence was that as a result of the knife wound, Bol suffered a partial division of one of the muscles that moves the right thumb outwards; division of several nerves responsible for sensation of the right ring and little fingers, which required microsurgical repair; damage to one of the two main arteries to the right hand; and soft-tissue wounds to the right hand, requiring washout and closure.
12 After the rear window was smashed, the other complainants, Jima Wech and his wife, Arok Chol, together with Emmanuel Mabior and Robert Deng, got out of the vehicle.
13 After getting out of the vehicle, Wech and Chol noticed a large number of people fighting and also observed you with a knife.
14 Wech observed you trying to stab Bol and also heard Bol questioning you why this fighting was taking place.
15 After Bol was struck with the knife and the metal rod, Wech and Chol were walking backwards towards their car with a large number of people around them and chasing them. In particular, you were holding the knife and kept crossing the concrete with it and said,
"I swear to God, you have crossed my line Sonny [Wech]. I am going to kill you and your wife.”
16 Chol gave evidence that there was a large number of people surrounding her, yelling and throwing objects such as bowls, from the front of the hall and during this time, you came with a knife, you were wiping it on the floor and Chol heard you say that you were going to kill her.
17 Both Wech and Chol were frightened by your actions and retreated back to Wech’s vehicle.
Victim Impact Statement
18 Counsel for the prosecution tendered an undeclared victim impact statement from Gabriel Bol. Subsequently, an appropriately declared statement was provided. (See exhibit A). Your counsel objected to various parts of such statement and ultimately it was agreed between your counsel and counsel for the prosecution, to tender the victim impact statement with various deletions. In this respect, it was agreed that the words commencing with “like what happened”, in the fourth line of Question 1, would be deleted down to the words, “tormenting me on a daily basis”, at the end of Question 1.
19 In his Statement, Bol describes his physical state to be "weak" and he is unable to work in jobs such as factory work “now and in the future”. He also suffers some depression as a result of the injury and the circumstances surrounding the injury. In particular, he has difficulty sleeping and dreams of someone trying to kill him.
20 He also describes being unable to trust any "black people" and relives what it was like when living in the Sudan and confronting militias, neighbouring tribes and rebels.
Your personal circumstances
21 I was informed by your counsel that your correct date of birth is 15 April 1991 and you are presently 24 years of age. At the time of the offending you were 23 years of age.
22 You were born in Sudan and are the third of six children. Your father now lives in the United States, with your mother living in Melbourne. Four of your siblings live with your mother and one of your brothers lives in Sydney.
23 Your father apparently left Sudan in 1999, not long after your youngest sibling was born and went to the United States. In 2002, the rest of the family, including you, left Sudan and went to Cairo and then made application for refugee status, after which you and your family lived in the community while the application was processed.
24 You arrived in Australia in late 2004 and on arrival, you could only speak your native Arabic and no English. In the Sudan, you had two or three years’ schooling and on arrival in Australia, you attended the Western English Language School in Braybrook for about nine months, after which you attended the Denby Park Secondary College for about a year and a half, where the focus was on language development.
25 You then attended the Sunshine College where you completed your secondary education from Year 9 to Year 12, during which time you were shy and embarrassed, as your English was still at a rudimentary level. Over time you made some friends. You obtained your VCE in 2012 with an ATAR of 57, with your best subjects being physical education and maths. Some thought was given to obtaining an engineering qualification, but you commenced working instead.
26
You obtained a job in 2013 at Geelong Leather in North Laverton, working in the warehouse and remained in that employment up to your arrest on
4 November 2014. On that date, you were remanded in custody and as at
6 August 2015, you will have served 274 days in custody, not including
6 August 2015. Prior to your remand in custody, you had been living with your mother and various siblings in Geelong.
27 You informed your counsel that you would have a drink on the weekends, but was not involved in any drug use. Furthermore, you have no particular health issues and in particular no mental health issues requiring any medication.
28 Since being in custody, your counsel informed me that you have found the Melbourne Remand Centre a challenging environment, although you have completed an occupational health and service course, together with a food handling course. You were also in the Melbourne Remand Centre when the recent riot took place, which you found particularly frightening.
29 Your counsel stated that the following matters were relevant in mitigation of any sentence:
(a)
Given that you were 23 years of age at the time of the offending, the principles applicable to “youthful offenders” should apply. In this sense,
I understood the submission to rely on principles enunciated in R v Mills [1998] 4 VR 235 and in particular, at page 241, whereat it is stated that rehabilitation of a youthful offender is usually far more important than general deterrence. I also make reference to Azzopardi v R (2011) 35 VR 43 and in particular, I refer to paragraphs 34 to 35, where Redlich JA, with whom Coghlan AJA and Macaulay AJA agreed, stated:
“[34] There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and
self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:‘In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.’
[35] Secondly, "Courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. The potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour, than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated, is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.”
(b) Although your counsel does not suggest that you show any remorse for any of your offences, she submits that the prospects of rehabilitation are “reasonable”, given that you have the household of your mother to return to and also you are confident that you could obtain your previous employment on release from your present incarceration. Furthermore, your counsel advises that you have found your period of remand “salutary”.
30 Your counsel also submitted that the following matters are also relevant in relation to an appropriate sentence:
(a) It was “Goum” hitting the rear window of the car with a baseball bat which instigated the trouble on that night (rather than you);
(b) There is an overlap in the offences and in particular, the offence of affray includes the conduct in the other charges and to this end, any period of imprisonment for the affray should be concurrent rather than cumulative to any extent;
(c) In relation to cumulation between the other three charges, the two threats to kill have significant overlap, as they were delivered simultaneously and that total accumulation would not be appropriate.
31 Your counsel ultimately submitted that the time served, which was a period of 247 days at the time of the first plea hearing, should be a sufficient punishment. If not, time served, together with the imposition of a community corrections order. If a longer sentence is considered appropriate, then to fix a non-parole period which would effectively permit immediate consideration for release.
32 Your counsel conceded that your previous offending in 2010, involving in part, unlawful assault, and on 18 December 2012, involving recklessly causing injury, was relevant and that factors involving general and specific deterrence and just punishment were also relevant in determining an appropriate sentence.
33 Counsel for the prosecution made the following submissions:
(a) At the time of the subject offending, you were on bail and had been on bail since October 2014 in relation to the alleged offending occurring on ANZAC Day 2014;
(b) There needs to be some degree of cumulation between sentences, given that different complainants were involved, but it was appropriate to have some concurrency, as all the offences occurred on one occasion in the one location;
(c) General and specific deterrence have “high prominence” as a sentencing consideration, together with denunciation and just punishment. Furthermore, protection of the community is “relevant”, as the offending occurred in a public place with a number of people in the surrounding area.
34
Ultimately, counsel for the prosecution submitted that the nature and gravity of the subject offending calls for immediate imprisonment, although, as
I understood the submission, he did not, to use his words “quibble” with the “Boulton” principle.
35 I directed that you be assessed as to your suitability for a Community Correction order. In a report from the Department of Justice, dated 9 July 2015, it is recorded that you have been assessed as suitable for such an order, with a recommendation that there be particular conditions in relation to community work, treatment and rehabilitation, involving programs to reduce re-offending, and supervision. In particular, I note that the Community Correctional Services assessed you as being at “medium risk” of re-offending, according to the Level of Service Risk Assessment Tool.
Conclusion
36 I consider that the charge of intentionally causing injury to Gabriel Bol, by the use of a knife, to be an objectively serious offence. The description of the injury by the treating doctors make plain the extent of such injury. Furthermore, the victim impact statement from Bol makes plain that such injury has had an impact on his life.
37 I find that the complainant, Bol, was doing no more than playing a role as a peacemaker following the breaking of the rear window of the vehicle. Seemingly, the violence directed to him by you was brought about by no more than you grouping him with Jima Wech and Arok Chol, to whom you made threats to kill.
38 The use of knives in our community for violent purposes will not be tolerated and must be clearly denunciated. Although I accept that your youth does moderate the factor of general deterrence, it is important that others be deterred from the use of knives for violent purposes. Furthermore, given the history of your past offending and again, appreciating your youth, I consider that you should be specifically deterred from pursuing such violent actions.
39 Such threats to kill were made very close to each other and seemingly arose from some pre-existing tensions existing between you and Wech and his wife, Chol. It is unclear whether such tensions arose from different tribal backgrounds, or some other animosity, however, I do find that there was no particular provocation by Wech or Chol, prompting the threats to kill made by you on that night. Such threats to kill were made in extremely intimidating circumstances, whereby you were holding a knife and crossing the knife over concrete. Again, I consider such offences to be objectively of a serious nature.
40 In respect to the crime of affray, I do accept that it would appear that you were not the immediate instigator of the affray, given that Goum was the breaker of the rear window of the vehicle. However, I do accept the evidence of each of the complainants, that you were a central figure in the affray. Furthermore, the other offences form part of the affray and I consider any sentence should be largely concurrent with the sentences for the other offences.
41 You have shown no remorse for such offending and as I have already noted, you do have a history of some violence. Notwithstanding the submission of your counsel, I consider the prospects of your rehabilitation to be only fair, given such lack of remorse and your antecedents.
42 I do accept that seemingly you will have a home to return to and the support of your family and siblings. Furthermore, it is to be hoped that once you are released into the community, you will have the prospect of regaining employment with your old employer. I consider that the prospect of a solid domestic base and obtaining employment would help promote your rehabilitation.
43 I refer to the guideline judgment given by the Court of Appeal in Boulton, pertaining to the operation of community corrections orders, which has been available to Victorian courts since January 2012. As that Court stated, “[t]he CCO is a radical new sentencing option, with the potential to transform sentencing in this State”. Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature, and a sentencing court can attach to a Community Correction Order a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”.
44 As pointed out by the Court of Appeal, a Community Correction order is a “flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously”.
45 I refer to s5(4) and s5(4C) of the Sentencing Act 1991 and in particular note that the Court of Appeal has stated that s.5(4C) prohibits the imposition of a sentence of imprisonment, unless the sentencing court has paid specific and careful attention to:
(a) the purposes for which sentence is to be imposed on the offending; and
(b) whether those purposes can be achieved by a community corrections order, to which one or more of the specified onerous conditions is attached.
46 I also refer to Appendix 1 of the Court of Appeal judgment, which is headed “Community corrections orders, Guidelines for Sentencing Courts”. Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offence and moral culpability of the offender. As I have already recorded, I consider that some of the offences committed by you to be of a serious nature. I am then called upon to consider whether:
(a) the crime as so assessed is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b) a community corrections order, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
47 Given what I believe to be the gravity of the offending in relation to Charges 1, 4 and 5, I consider that it is appropriate to sentence you to a period of imprisonment, in conjunction with a Community Correction order.
48
I propose to convict you and sentence you in relation to each offence.
I consider that pursuant to s.40 of the Sentencing Act 1991, the subject offences are of the same or of a similar character and, accordingly, I propose to sentence you in relation to such offences to one community corrections order for a period of 18 months, at the completion of your imprisonment.
49 In particular, I intend to convict you and sentence you to a period of imprisonment in relation to Charges 4 and 5. The offence of “threat to kill” is a “serious violent offence” within the meaning of s.6B of Part 2A of the Sentencing Act 1991. Pursuant to s6B(2), a “serious violent offender” is one who has been convicted of a serious violent offence and for which he or she has been sentenced to a period of imprisonment.
50 Section 6D of the Sentencing Act 1991, provides that in sentencing a serious offender for a relevant offence, in this case, the second threat to kill offence, the court, in determining the length of sentence, must regard the protection of the community as the principal purpose for which the sentence is imposed, and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
51 Section 6E of the Sentencing Act 1991 provides that, every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence of imprisonment imposed on that offender, whether before or at the same time as that term.
52 Section 6F of the Sentencing Act 1991 provides that, a court that sentences a serious offender for a relevant offence must, at the time of doing so, cause to be entered in the records of the court in respect of that offence, the fact that the offender was sentenced for it as a serious offender.
53 On calling for further submissions from the parties in relation to the application of Part 2A of the Sentencing Act 1991, your counsel, and counsel for the prosecution, submitted that the relevant authorities assert that in assessing the risk of re-offending, principles of proportionality and totality are still relevant in sentencing. (See R v LD [2009] VSCA 311 at [25] to [29]).
54 The prosecution do not seek a disproportionate sentence in the circumstances of this matter, but do submit that there should be some cumulation in relation to Charges 4 and 5. In this respect, the prosecution accepts it is “particularly relevant” that both offences occurred in one event.
55 Your counsel submitted that considering Charges 4 and 5 arose from exactly the same conduct at the same time, there should be no cumulation between the sentences for each offence and if there was to be any cumulation, it should be “partial and very limited”.
56 In the circumstances of this matter, I do not consider there is an appropriate basis for a disproportionate sentence. I also accept that the two offences of threat to kill occurred very close to each other in the one event, but it must be remembered that different complainants were involved. In the circumstances, I intend to partially cumulate in relation to such offences. You will be declared a serious violent offender in relation to Charge 5, pursuant to s.6F of the Sentencing Act.
57 Please be upstanding.
58 In relation to Charge 1, you are convicted and sentenced to a period of seven (7) months imprisonment. This is the base sentence on the Indictment.
59 In relation to Charge 3, you are convicted to a period of three (3) months imprisonment.
60 In relation to Charge 4, you are convicted and sentenced to a period of six (6) months imprisonment.
61 In relation to Charge 5, you are convicted and sentenced to a period of six months imprisonment and you are declared to be a serious violent offender pursuant to s.6F of the Sentencing Act1991 (Vic).
62 The Court directs that one (1) month of Charge 3, two (2) months of Charge 4, and two (2) months of Charge 5, be served cumulatively upon each other and upon the sentence imposed in Charge 1, making a total effective sentence of twelve (12) months imprisonment.
63 In relation to Charges 1, 3, 4 and 5, you are further sentenced to a community corrections order for a period of eighteen (18) months after your release from prison. In particular, I also order the following conditions:
(a) Pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo treatment and rehabilitation with programs that address factors relating to your offending behaviour;
(b) Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed, as directed by the Secretary to the Department of Justice.
64 I declare that you have served 274 days as pre-sentence detention in relation to these offences and such period is to be administratively deducted from this sentence as time already served.
65 Further, pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on the database. I must inform you that if at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.
66 Anything to say?
67 MR STOUGIANNOS: No, Sir.
68 MS CLARK: No. If Your Honour pleases.
69 HIS HONOUR: Yes. Ms Clark, your client will need to just sign the CCO aspect.
70 MS CLARK: Yes.
71 HIS HONOUR: I might adjourn to have that done. Is there anything that you want to raise with me (indistinct)?
72 MS CLARK: Your Honour, look there's just one matter, but I think - just in relation to his date of birth. Your Honour, I think, referred earlier to his date of birth being 15 April 1991. Having been corrected, I think I actually corrected it to 15 April 1992. So I'll just make that - - -
73 HIS HONOUR: So how old was he at the time of offending then? He was what?
74 MS CLARK: He was 23.
75 HIS HONOUR: Twenty-three. Hang on, I better change that. I must admit, my note is just the (indistinct). Maybe I misunderstood it when you were telling it to me.
76 MS CLARK: No, he'd be - he would have been 22, he's now 23. I apologise for that, Your Honour.
77 HIS HONOUR: Wait a minute, I will just go back. I think that is important, because I have partly reflected - - -
78 MS CLARK: Yes.
79 HIS HONOUR: Page 4, is it? Yes, I have read at paragraph 20, this is p.4, "I was informed by your counsel that your correct date of birth is 15 April 1991", where it should be - - -
80 MS CLARK: 1992, Your Honour.
81 HIS HONOUR: Yes. But I am right, and you are presently 24 years?
82 MS CLARK: He is presently 23 years, Your Honour.
83 HIS HONOUR: Sorry, yes. And 22 at the time of - - -
84 MS CLARK: Yes. Yes.
85 MS CLARK: Thank you, Your Honour, that's the only matter.
86
HIS HONOUR: I will just amend, for those recording this matter, where I have said earlier, "I was informed by your counsel your correct date of birth is
15 April 1991", that is to be amended to 15 April 1992. And when I go on to say, "and you are presently 24 years of age", you are presently 23 years of age, and at the time of the offending, you were 22 years of age. Do I mention the age later again? I do, don't I, or do I?
87 MS CLARK: I think you do, Your Honour, but - - -
88 HIS HONOUR: Do I? I am sure I did, the actual - - -
89 MS CLARK: But I don't think I've got an issue with what you say later, Your Honour, it was just specifically in relation to - - -
90 HIS HONOUR: Yes, I am not sure I did actually mention his age.
91 MS CLARK: Yes.
92 HIS HONOUR: Wait a minute, I might have said, when you were talking about bills and - I will just check I did not say anything about it.
93 MS CLARK: I suppose I'm just anxious to make sure that the correction is the way that I - - -
94 HIS HONOUR: Look, no, no, look, if it is - - -
95 MS CLARK: Yes.
96 HIS HONOUR: Yes, at 28(a) when I am reciting your submissions and you go to the youthful offender submission.
97 MS CLARK: Yes.
98 HIS HONOUR: I have said there, "23 years", it should be 22, at the time of the offending.
99 MS CLARK: Yes.
100 HIS HONOUR: Yes.
101 MS CLARK: If Your Honour pleases.
102 HIS HONOUR: Anything to say about that, Mr Stougiannos?
103 MR STOUGIANNOS: No, no, there's different dates. I noticed the Community Corrections report's got his date of birth as 1 April '91. So I'll bow to my friend's instructions about that. We can't say one way or the other, Your Honour.
104 HIS HONOUR: Well look, obviously the younger the more pertinent the submission in relation to youthful offending, but for present purposes, I don't think I would be swayed whether it was '91 or '92 was the actual date of birth.
105 MR STOUGIANNOS: We don't want to make an issue of it, certainly accept what my friend says.
106 HIS HONOUR: Yes, very well. Look I will adjourn temporarily to have that matter attended to, otherwise the prisoner can be taken.
107 MS CLARK: If Your Honour pleases.
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